Friday, March 05, 2010

Afghan Detainee Diversion

This isn't the first time former Supreme Court Justice Frank Iacobucci has been asked to weigh the tension between publicly releasing documents and national security interests. In fact, Iacobucci has already headed an inquiry into torture allegations and released a formal report. I found this passage applicable to the questions he will now face:
National security confidentiality review. In preparing a version of the report suitable for public disclosure, Inquiry counsel and I considered the constraints imposed by the Terms of Reference (which required that I must take all steps necessary to prevent the disclosure of information subject to national security confidentiality), section 38 of the Canada Evidence Act (which prohibits disclosure of information that would be injurious to international relations, national defence or national security), and the factors identified by Mr. Justice Simon Noël in Canada (Attorney General) v. Canada (Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar).

With these factors in mind, I engaged in the national security review process with a view to providing the public with as complete as possible an account of the actions of Canadian officials and my findings in respect of those actions. With one exception, I am satisfied that the information contained in the confidential version of my report, but omitted from the public version, is properly subject to national security confidentiality. The information that forms the exception is, in my view, directly relevant to my mandate and should be disclosed to the public.

However, the responsible Minister is of the opinion that disclosure of this information would be injurious to national security, national defence, and/or international relations. If it is ultimately determined that further information can be publicly disclosed, I intend to take the necessary steps to supplement the public version of my report...

There remains certain information that bears directly on my mandate that I believe can and should be included in the public version of my report. However, the responsible Minister is of the opinion that disclosure of this information would be injurious to national security, national defence, and/or THE INQUIRY PROCESS 61
international relations.

In this case Iacobucci deferred to the Minister in question, when deciding whether to publicly release certain documents. One will also note, Nicholson quoted VERBATUM the bolded portion today in the H of C.

An interesting passage on blacked out documents:
In preparing the public version of my report, I chose not to use the technique of indicating where information has been omitted through black-outs or ellipsis marks. In my view, doing so would have impaired the intelligibility and coherence of the public report, particularly since, in many instances, the best solution to a national security confidentiality concern was to summarize the information or convey its essence in a different way, rather than omit specific words or phrases. The text of the public report includes approximately 20% fewer words than the text of the confidential report (excluding footnotes).

I'd invite others to review the massive report, but I suspect one will find the Conservative government has a VERY CLEAR understanding of how Iacobucci views classified documents in the context of Ministerial opposition and/or national security considerations. In other words, there is NO way Iacobucci is chosen, unless his past opinion and record doesn't denote some sympathy towards the government's current stance.

I'll leave it to the legal beavers to decide if my interpretation is correct.


bubba said...

If what happened to whom and when it happened can be summarized without locations or other details that do hamper soldier safety or national security can be released is this a positive ? I think so. I was just wondering why the committee is only interested in post 2006 Afghanistan. Is truth only important under this Govt while pre 2006 get a pass?

Omar said...

Not unlike the Liberals throwing their support behind a budget they disapprove of, I'm going to go waaay out on a limb here and assume the Liberals will find this "Afghan Detainee Diversion" absolutely unpalatable and therefore do absolutely nothing about it.

Steve V said...

Oh, we have to go with this election routine now, do we Omar?

Come on, it's so lame.

Yes, yes, force an election and get killed, so Harper has a much longer mandate. For the love of god...

Omar said...

Constantly being played like a fiddle isn't exactly awe inspiring either. Besides, I'm not so sure an election would result in a Liberal killing field. I really tire of always having to wait for the optimal conditions. The Copenhagen fiasco, Afghan torture scandal, inappropriate prorogations, the BS happening at Rights & Democracy, Bill C-15, etc, etc, etc, when exactly is the right time to go? I mean really, the continual support of these idiots seems pretty freaking lame to me.

Steve V said...

Nobody wants an election, including the other parties.

Anyways, do we have to hijack another tread debating? Remember last fall, only a fool forgets.

49 Steps said...

A judge has no damn business even looking at this.

Parliament is supreme in our sysyem, and parliament has already voted for the hand over of unredacted documents.

The opposition should force this issue.

Parliament is supreme over the executive, and that is that.

Bubba, and Omar

You really got to lay off the booze

Omar said...

Um, 49 Steps, that is more or less what I'm saying. Sober as a judge here. What are you on?

Steve, I know, I know. It's just frustration talking. Hijacking over. The plane doesn't need diversion to Cuba. ;-)

Steve V said...

I hear you on the frustration front.

marie said...

Did I hear this right or did someone say that this is a retired judge with no jurisdiction on making any kind of rulings because this retired judge is no longer a judge. Retired, no longer licenced to make judgement on anything legal. But let him go ahead and then see where that leaves the Reform/Cons literally. A laughing stock of the world and more importantly, of Canada. How can anyone take this PM and his MP's seriously.

I think Ignatieff is a very smart man to let this dictator defeat himself with his shenanigans and propaganda.

Canadians aren't as blind sited as the Cons hoped for. The more we see him, the more we dislike him and his party.

Jeff said...

I think Marie is right.

It doesn't matter what this retired gentleman says. I think we should ignore his report.

They have to cough up the documents or take it to a sitting judge.

Interestingly, I don't think that the Conservatives made any claim that this consultant has any authority. They just said that they would report what he says. It's as though they are holding their breath and hoping that we'll all think it's kinda like a real supreme court decision.

Steve V said...

"They have to cough up the documents or take it to a sitting judge."

I agree, that should be our stand. Period.

Tof KW said...

My, oh my, oh my...
This story just isn't getting any better for Harper.

CBC News: Possible war crimes?

Steve V said...


And, doesn't that really make sense when you think about it? I said from the outset, the Con reaction spoke volumes. You don't put up all these roadblocks, if you have nothing to hide, as they've said publicly. It's never jived, in fact the stance suggests the opposite, explosive and damaging.

You know you're in trouble when Terry Milewski picks up a scent ;)

Tof KW said...

Agreed. If true, and I suspect so, then this is a game changer. If our government indeed did specifically instruct our forces to hand over 'high priority' Taliban over to knowingly be tortured for evidence, then we've got war crimes here folks. Thanks Harper, you've dragged our once great nation into the gutter along with 'W' and Abu Ghraib.

Steve V said...

It will dominate Ottawa for months, an inquiry will be forced. I was actually shocked how unequivocal he was, and he had first hand knowledge. A huge game changer.